Vasilenko & Anor v Secretary of State for the Home Department

This is the adjourned application for permission to appeal against the refusal by Walker J to allow the applicants to seek judicial review of the decision of the Secretary of State for the Home Department to remove them from the United Kingdom and return them to Latvia.

The applicants are a married couple, both 64 years of age. They are both of Russian ethnic origin, and were born in Latvia at a time when it was part of the Soviet Union. They lived there in Latvia until 1997 when they came to this country and sought asylum. Their asylum applications were refused in 2000.

The applicants remained in this country where they had employment and had bought a property. Their daughter lives here. The applicants’ Latvian passports remained in the custody of the Home Office. No arrangements had been made to remove them when, in May 2004, Latvia became a member state of the European Union. That month the Home Office informed the applicants that, following the accession of Latvia, they were free to remain in the United Kingdom. The applicants’ then solicitor wrote to the Home Office in July 2004, pointing out that, although the applicants held Latvian passports, those passports described them as aliens on account of their Russian ethnic origin. The letter asserted that the applicants are in fact stateless Russians. The Home Office undertook to reconsider their case. That was done, and the result was the issue of a notice of liability to removal followed by an order for removal. That order has been stayed, pending these proceedings.

The claim for judicial review is based on two grounds. First it was said that it was unlawful to remove the applicants from the UK because they are Latvian citizens, and since May 2004 have been entitled to live in the United Kingdom as of right. The Home Office has indicated in correspondence that the applicants’ solicitor had agreed that they were not Latvian citizens. It appears that the Latvian authorities regard the applicants as “non-citizens”; as such they are entitled to live in Latvia but are deprived of various civil rights. It seems to me that the assertion by the applicants’ solicitor ought not to be treated as conclusive, and that a decision should be made as to the status of these applicants. It may be that they are Latvian citizens in which case they are entitled to stay in this country. It may be that they are stateless. If so, their stateless status is relevant to their right to stay in this country.

The second ground which was argued before Walker J was that the removal of these two 64 year-old people, who have lived in the United Kingdom for 9 years, was a breach of their Article 8 Convention rights. It was contended that their circumstances are exceptional and that proper consideration of their Article 8 rights would result in them being granted permission to remain.

The Home Office’s position is that the applicants ought to return to Latvia and undertake the examinations necessary to acquire naturalisation, after which they would be entitled to live in this country as of right. These examinations include a language test and a constitution and history test. The decision letter from the Home Office does not appear to deal with the issues relating to Article 8; in particular it is not clear whether or how the Home Office has considered whether it is necessary and proportionate for these two applicants to be required to return to Latvia in order for the proper protection of the legitimate aim of maintaining an effective system of immigration control.

Accordingly, in my view, the applicants have arguable grounds for seeking judicial review. I would grant permission pursuant to CPR Part 52 rule 15(3). In my view, the application for judicial review should proceed in the administrative court, and the case should be referred to the judge in charge of that court for further directions. In my view, the stay on the removal ought to remain in place pending completion of these judicial review proceedings.

LORD JUSTICE JACOB: I agree. I would only add this. Quite apart from the question of statelessness, it must be questionable whether it is a sensible and rational policy to require these two individuals to go back and take Latvian state examinations for qualification for full Latvian citizenship which if they pass would entitle them to come back here as EU citizens. I agree with the course proposed by my Lady.